On September 27, 2017, in
Casserly v. The City of Delray Beach, No. 4D16-1771, the Florida Fourth DCA affirmed a trial court’s
dismissal of a plaintiff’s complaint in a case in which the plaintiff
allegedly was injured due to rollerblading over a pothole on a City street.
A Florida statute, Section 316.0085, is intended to promote skateboarding
and inline skating along with other recreational activities. The statute
expressly provides that if a governmental entity sets aside an area for
such activities, then the entity is not liable for resulting injuries
in the area in the absence of a failure to warn about a dangerous condition
of which a participant does not and cannot reasonably be expected to have
notice. Although the accident in this casedid not occur in a designated
area, the plaintiff argued that the defendant should be subject to the
failure to warn standard set forth in the statute. The City argued that
another statute, Section 316.2065, which prohibits skaters on public roads,
effectively precluded any determination of liability on its part. The
majority opinion of the Fourth DCA panel ruled on the latter basis in
affirmance of the dismissal. However, as pointed out by Judge Warner in
a concurring opinion, the plaintiff’s complaint, while subject to
dismissal as drafted, could have been amended to state a cause of action
positing the plaintiff skater as a trespasser on the public roadway and
the defendant as an owner with a duty to avoid willful and wanton harm.
SeeWood v. Camp, 284 So. 2d 691, 694-94 (Fla. 1973) ([t]he unwavering rule as to a trespasser
is that the property owner is under the duty only to avoid willful and
wanton harm to him and upon discovery of his presence to warn him of known
dangers not open to ordinary observation.”

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